The first thing you are going to need to decide after the conference is closed is whether you want to represent yourself at the hearing. The hearing is very different from the conference. It is a formal process – a trial in effect and adversarial in nature. You will have to present evidence to the court and argue your case. You may also have to discuss points of law. Your case will be challenged by the other parties and you will have to defend your position. Other parties are likely to have lawyers (or other experienced professionals) representing them.

So before you decide to represent yourself you should gather as much information as possible. One good way to find out (and one that we highly recommend) is to sit in on someone else’s hearing so that you can see first hand the processes and procedures. The court registry can advise what hearings are coming and advise if and when you would be able to observe.

It may also be helpful to get some professional advice. The Environmental Defenders Office (EDO) can be very helpful. Or you may want to see your own lawyer or another professional advisor (eg. a planner).

The next things you need to consider are:

  • what facts or opinions you need to establish to win your appeal and then
  • what witnesses you need to establish those facts or opinions.

The purpose of calling a witness is to provide the court with information that is relevant to your appeal. A witness should be either:

  • a person in possession of relevant information, or
  • an expert who has an opinion that is relevant.

You can even ask people who work for another party to the case to be a witness for you. For example, where a council planning officer has made a recommendation that favours your case, and the council assessment panel has rejected the recommendation, it is possible to call the planning officer to give evidence on your behalf.

Usually getting a witness to come to court is simply a matter of talking to them, asking if they are prepared to come and letting them know when the hearing is on.

From time to time a witness will not be prepared to come to court for you voluntarily. In those cases you can apply to court to issue a Summons to Witness to force them to come. This procedure is usually only used as a last resort and does have some consequences. For example, the court can order you to pay the witnesses reasonable costs of getting to court (taxi fares, accommodation, etc).

If you need the Court to issue a Summons you will need to pay a fee.

If you want to call an expert (eg. a planner, an engineer, a traffic engineer, etc) to give evidence to support your case, you need to get your expert to produce a written report.

The court has issued a Practice Direction that deals with how the court treats experts (Practice Direction 6). Some experts regularly give evidence in the ERD Court and so are familiar with the procedures and expectations. Others do not. If in doubt, print off a copy of the Practice Direction and give your expert a copy to make sure they understand what the court will expect of them.

You will also need to make sure your expert witness knows the date and time of the hearing

The Practice Directions and Rules set out some of the courts policies and procedures. They include various things that need to be done before a hearing. You must comply with these.

At least five days before the hearing you must provide – to the court and to the other parties – copies of any documents that you intend to rely on in the hearing. This includes expert’s reports, written statements, plans, diagrams, photographs, etc.

If the matter is an appeal against a decision under the Development Act the person who made the original application for development consent must also provide copies of:

  • any relevant certificate of title
  • a full set of plans
  • in addition, one copy of the site plan or the plan of division (whichever is relevant) reduced to A3 size

to the court and the other parties – again at least five clear business days before the hearing.

If your case is going to be heard by a single judge or commissioner, you must provide two copies of all documents to the court. If a judge with two commissioners (a full bench) is going to hear your case, you must provide four copies of all documents to the court. If you are not sure how many copies to provide, contact the court.

You only need to send one copy to each of the other parties.

Copies for the court can be hand delivered or posted providing they arrive at least five clear business days before the hearing.

Just as you have to provide documents to the other party or parties, they have to provide the same documents to you (within the same time-frame). So you should receive copies of the other parties’ statements, expert’s reports, diagrams, etc at least five clear business days before the hearing.

In Development Act appeals, the planning authority (the council or the Development Assessment Commission) also has to provide you (and the court) with ‘copy documents’ five clear business days prior to the hearing. These are copies of the documents that were used in assessing the development application.

If you don’t get these documents you should contact the court. They may help to chase them up. When you do get the documents, you should read them carefully.

Before a hearing you need to prepare your case. You need to look at the legislation that is relevant to your dispute, and past cases that support your argument. Past cases can be found at Austlii, searching by council care, zone, subject matter, etc. For example, you could search for cases in “City of Mitcham”, involving “significant trees”, in the “Residential (Hills) Zone”.

You also need to look at other material that is relevant to your dispute. For example, you should also look at the relevant Development Plan and be ready to talk about how it affects your case.

You may also want to

  • read the information on this website about the hearing
  • have a look at some of the useful links on this website
  • read the court’s Guide to representing yourself in an ERD Court Hearing
  • read some previous ERD court judgments